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The Two Sides of Extraterritoriality

To those who have studied R. v. Hape in detail, the decision of Blanchard J. in Canadian Security Intelligence Service Act (Canada) (Re), 2008 FC 301 will probably not come as a big surprise. However, seeing as at the time I did not pay much attention to Hape due to its criminal law context, I found the CSISA decisin to quite interesting and, my opnion, very controversial in its conclusion regarding application of the Charter to extra-territorial state actions. In CSISA, Blanchard J. dealt with two issues: (1) the power of the court to issue extraterritorial information collection warrants; and (2) application of the Charterand the Criminal Codeto CSIS investigative activities conducted off Canadian soil.

(1) Power to Issue Extraterritorial Warrants

CSIS argued inter alia that its mandate under s. 12 of the Act included investigation of “threats to the national security of Canada”, including “activities within or relating to Canada”, and since the court was given the exclusive power to issue warrants under s. 21, it could issue the extraterritorial warrant requested. CSIS argued that since the Parliament did not put an express territorial limitation in s. 12, as it did in s. 16 dealing with collection of “foreign intelligence”, it must have intended s. 12 to have an extraterritorial reach.

Applying “the established principles of statutory interpretation”, Blanchard J. first concluded that the presence of an express territorial limitation in s. 16, the absence of the same in ss. 12 and 21, and the reference to extraterritorial activities in the definition of “threats to the security of Canada” made it impossible to attribute a clear and unambiguous meaning to the relevant provisions with respect to their extraterritorial application. Thus, extra-textual factors had to be considered.

In the absence of evidence clearly showing the Parliament’s intention in enacting these sections, Blanshard J. interpreted the provisions relying on principles of international law, the content and relationship of which to Canadian law were discussed in some length in Hape. Supported by pinpoint references to Hape, Blanchard J. summarized the following applicable principles:

“legislation is presumed to conform to international law” (¶46);

“customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation” (¶48);

“extraterritorial jurisdiction is governed by international law rather than being at the absolute discretion of the individual state”’ (¶54);

“”clear constitutional authority” to enact legislation with extraterritorial effect is informed by the “binding customary principles of International law”, which prohibit interference with the sovereignty and domestic affairs of other states” (¶49);

“prohibitive rules of international law … have evolved to protect the sovereignty of nation states against interference from other states” (¶52); and

“”prohibitive rules of customary international law” are directly incorporated into Canadian domestic law” (¶52).

In the light of the fact that it was conceded that “the investigative activities at issue impinge upon the territorial sovereignty of the foreign state”, and will most likely “violate the laws of the jurisdiction where the investigative activities are to occur”, Blanchard J. concluded that:

By authorizing such activities, the warrant would therefore be authorizing activities that are inconsistent with and likely to breach the binding customary principles of territorial sovereign equality and non-intervention, by the comity of nations.

He rejected CSIS’s submission that “in the national security context, the practice of “intelligence gathering operations” in foreign states is recognized as a “customary practice” in international law.”

Ultimately, relying on the overriding statutory interpretation principle that “legislation is presumed to conform to international law” unless there is an express legislative directive stating otherwise, he found that he could not read into ss. 12 and 21 a permission to breach international law and infringe on the sovereignty of a foreign state.

(2) Application of the Charter and the Code

This part of CSIS’s argument was based on its concern “to ensure that Canadian agents engaged in executing the warrant abroad do so in conformity with Canadian law since the impugned investigative activities may, absent the warrant, breach the Charter and contravene the Code”. In what I believe is an notable logical leap, relying on Hape for the proposition that “Canadian law is unenforceable in another state’s territory without that state’s consent”, Blanchard J. concluded that:

Absent consent, Canadian law, particularly as it relates to the “investigative jurisdiction”, cannot apply to such investigative activities conducted in another state’s territory. It therefore follows in these circumstances that section 8 of the Charter which protects against unreasonable search and seizure, can find no application.

He further concluded that CSIS has not shown what charges under the Criminal Code the warrant was needed to protect against. Since “in the absence of consent, Canada cannot enforce the Code over matters situated outside Canadian territory”, subject to provisions of the Code which have express extraterritorial application (e.g. high treason, forgery and conspiracy), there was nothing to protect against and the issue was effectively moot.

Questions and comments.

(1) At paras. 43-44, Blanchard J. applied the Hape jurisdictional taxonomy to characterize the requested warrant as relating to the court’s investigative (“executive or enforcement”) and adjudicative (“power to resolve or interpret the law through binding decisions”) jurisdictions. The latter being invoked because the warrant would be “issued pursuant to a Court decision”. Presumably, this was in contrast to the legislative jurisdiction. Perhaps someone can shed some light as to what, if anything, turned on this characterization.

(2) Perhaps again reflecting my naiveté, it seems amazing that such a fundamental issue of the judicial power to authorize infringement of a foreign state’s sovereignty was decided via such a procedural approach, merely interpreting the relevant statute. I recognize that the statutory interpretation principles that were applied by the court were substantive in themselves – addressing the fundamental relationship between foreign and international law. I also acknowledge that the effect of the intended action was considered to a much greater extent than the language of the provisions; again making the analysis seems more substantive. However, it still seems to me that clothing these principles in the cloak of statutory interpretation reduces their validity or diminishes their importance, somehow making them more transient. Is the relationship between Canadian law and international law so tentative?

(3) Amazingly, despite the involvement of Canadian government actors and possibly even Canadian citizens as subjects of the investigative activities by these actors, Blanchard J. concluded that the court’s lack of power to authorize investigative activities on foreign soil (a prima facie infringement of a state sovereignty) in the absence of an express legislative direction also meant that the court could not enforce the Constitutional limits on the state’s actions, even if these limits would prima facie only be enforced through the court’s local jurisdiction over the state and the actors. In other words, while the actions that may be subject to such enforcement took place outside of the court’s territorial, investigative and adjudicative jurisdictions, neither the persons who committed or authorized those actions, nor the state itself, are outside of any of these jurisdictions.

Although he cited R. v. Harrer, for the proposition that “section 32 of the Charter restricts its application to matters within the competence of the legislative bodies of the governments of Canada and the provinces [and t]he Charter therefore finds no application in foreign states”, I do not see how this can be extended to the form the proposition that the Charter has no application to Canadian government acting on foreign soil, whether with or without judicial authorization, particularly if the actions directly affect Canadian citizens. I do not believe that such limitation can be found in s. 32(a) of the Charter which dictates that it applies to the “government of Canada in respect of all matters within the authority of Parliament”, presumably includig formation of CSIS and authorization of its actions.

In this light, I think that Mr. Justice Blanchard’s conclusion in ¶69 appears to be particularly hypocritical:

The above examples reveal that where Parliament elected to provide for the application of Canadian law to events occurring extraterritorially, it has done so expressly. It seems to me that a heightened requirement for clarity by Parliament arises in circumstances where the statute seeks to provide for activities that would in all likelihood violate the binding principles of customary international law, which are incorporated in Canadian law. To accept less in relation to investigations, risks undermining public confidence in the justice system and in the judiciary whose primary function is to uphold the law.

Surely, to accept that the Charter ceases to apply to actions of the Canadian government as soon as these actions, duly authorized by the appropriate legislative or executive measures, leave the Canadian soil “risks undermining public confidence in the justice system and the judiciary whose primary function is to uphold the law”, particularly the Charter, which is the overriding and overarching law of the nation.